Kazaa's P2P libel suit threatens to mute Canadians

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Valley Justice A fresh lawsuit making its way through Canadian courts threatens to result in severe restrictions being placed on what internet users can post to message boards. It just might enhance corporate abilities to strong-arm ISPs and authors, too.

In a strange new turn of events in the Kazaa saga, Sharman Networks and its CEO, Nikki Hemming, have filed a defamation suit in the Supreme Court of British Columbia against P2Pnet operator, Jon Newton, his ISP, and four as-of-yet-unnamed users of the site. Apparently, Hemming and Co. are hopping mad over a few of the articles and postings on the pro-P2P site concerning Hemming's recent Australian court appearance, during which she denied that she sold off a choice piece of Sydney real estate for the purpose of keeping her assets away from record companies out for restitution.

The content that has so unforgivably bunched Ms. Hemming's knickers contains very little that most people would even think was inappropriate, much less defamatory. [We can't link to the comments in question for obvious reasons, but this story contains a copy of the original complaint, which does point to the P2Pnet articles and comments.]

Ah, but this is Canada - land of hockey, Molson beer, and courts willing to shell out to almost anyone who feels their personal dignity has taken a hit because of someone else's nasty words. If the Sharman-Hemming duo can convince a court that the writings have tarnished their reputation, it will cost the authors a pretty penny and further limit what Canadians can say on the Net. Here's why.

Let's take a brief look at the basics of Canadian defamation law. A successful plaintiff must prove three essential elements in a libel case: First, that a statement was published and made available to a person other than the plaintiff; next, that the statement referred, directly or indirectly, to the plaintiff; and finally, that the statement was false and would discredit the plaintiff in the eyes of a reasonable person.

The statements made on P2PNet definitely satisfy the first two prongs; the question is whether or not the court will find that the statements were false and damaged the plaintiffs' reputations in this case. Given the current state of Canadian defamation law, it may be safe to assume that the answer is yes. The B.C. Supreme Court recently determined that placing pictures of teachers on a web site under the subject heading "B.C.'s Least Wanted" constituted an act of defamation, so it's clear that this is a court that doesn't want people saying bad things about each other.

The articles that Newton published were essentially extended quotations of the Australian Associated Press' account of Hemming's court appearance. As such, the articles would not count as defamation, since there is a qualified privilege to report accurately on court proceedings. Since it is generally reasonable to accept the Associated Press' reporting, Newton didn't act recklessly in putting the quotations on the site.

Where he may have gone astray, however, is continuing on to quote a comment to his site that accused Hemming and Sharman of hiding money from the Australian government. That comment came from a P2Pnet reader and made its way into the body of the text rather than just the comments section. In the lawsuit, however, Sharman and Kazaa point out four comments - the kind you might find on Slashdot, Yahoo or anywhere else - that make up the majority of the lawsuit, including the one Newton quoted. It's these items that will put Canadian internet users to the test.